Surrey County Council (18 011 083)

Category : Education > Special educational needs

Decision : Upheld

Decision date : 25 Apr 2019

The Ombudsman's final decision:

Summary: Mrs X complained the Council failed to provide the provision named in her son’s Education, Health and Care Plan, then failed to provide him with a suitable alternative education after he was excluded from school. The Council was at fault. P missed a significant amount of therapy and school between May 2017 and March 2018 and this impacted on his progress and wellbeing. The family experienced distress and Mrs X had to take time off work. The Council has agreed to pay P £4,500 to use for the benefit of P’s education and Mrs X £500. It will also provide information to the Ombudsman about its work to ensure sufficient provision is available for children out of school.

The complaint

  1. Mrs X complained the Council:
    • failed to provide her son with Occupational Therapy and Speech and Language Therapy, as named in his Education, Health and Care Plan, between May 2017 and March 2018; and
    • failed to provide her son with a suitable alternative education between November 2017 and March 2018, while he was out of school.

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The Ombudsman’s role and powers

  1. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  2. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  3. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Office for Standards in Education, Children’s Services and Skills (Ofsted), we will share this decision with Ofsted.
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. For this investigation, I:
    • considered the information Mrs X provided and discussed the complaint with her;
    • made enquiries of the Council and considered the comments and documents it provided;
    • looked at the relevant law and guidance, including the Children and Families Act 2014, The SEN Code of Practice 2015 and the Education (Provision of Full-Time Education for Excluded Pupils) (England) Regulations 2007;
    • considered the Ombudsman's guidance on remedies; and
    • wrote to Mrs X and the Council with my draft decision and considered their comments.

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What I found

  1. Children with complex needs may need an Education, Health and Care plan, which details the support they must receive in school. Councils are responsible for making sure all the arrangements named in the EHC Plan are put in place. Councils must arrange educational provision from the date they issue a final EHC Plan. They have the ultimate binding legal duty to ensure the special educational provision in section F of an EHC Plan is delivered. This duty is non-delegable.

Education out of school

  1. Councils must arrange suitable education at school or otherwise for children of compulsory school age, who may not otherwise receive a suitable education due to illness or exclusion. Councils must ensure children who have been permanently excluded are not without education for more than five school days.
  2. "Suitable education" means efficient education suitable to the child’s age, ability and aptitude and to any special educational needs they may have. This education must be full-time, unless the council decides the child’s physical or mental health mean this is not in their best interests.
  3. We issued a Focus Report in September 2011, amended in June 2016, titled “Out of school….out of mind?”. This gives guidance for councils on how we expect them to fulfil their responsibilities to provide education for children who, for whatever reason, do not attend school full-time. The report sets out how the number of hours teaching that constitutes a full-time education varies according to the year a child is in. For years 7 to 10 (children aged 11 to 15), full-time amounts to 24 hours weekly.
  4. Some children have behavioural, emotional or social difficulties that mean that life in school is challenging. It could be reasonable in those cases for councils to put in place a part-time education. However, the starting point should be that education is full-time. If part-time, councils must evidence this is more suitable and keep this under review.

What happened

Background

  1. P has several difficulties that impact on his learning, including ADHD, Dyspraxia and severe Dyslexia. Mrs X previously complained to the Ombudsman about the Council’s actions before it issued P’s Education, Health and Care Plan (EHC plan). We considered events between April 2015 and March 2017.
  2. P’s EHC plan of May 2017 explained his academic achievement was three to four years below his age, and he had difficulties with short-term memory, processing and sequencing. His handwriting was significantly slower than that of his peers. The provision named in his plan included:
    • An hour and 15 minutes of direct Speech and Language Therapy (SALT) per week;
    • Weekly group-based social skills support delivered by SALT; and
    • 45 minutes of sensory integration therapy, once weekly, delivered by Occupational Therapy (OT).

Primary school (School 1)

  1. When the Council issued the EHC plan, P was attending a mainstream primary school (School 1). Mrs X says School 1 had told the Council previously that P was making little progress and needed the level of provision maintained. However, the Council had reduced the hours P received, and School 1 had expressed concern in late 2016 about this. The Council told me that after it issued this EHC plan it “did not receive an indication by [School 1] that this provision was not being delivered. However, the SEND staff involved in this case are no longer in post, and the records are not sufficiently detailed to allow the Council to confirm whether this provision was delivered or not”. Mrs X told me School 1 did not provide P with SALT or OT. Due to previous discussions between the Council and School 1, Mrs X considers the Council should have known School 1 could not provide the provision.

Secondary school (School 2)

  1. P began attending a specialist secondary school in September 2017 (School 2). School 2 told Mrs X in September it was waiting for funding arrangements from the Council for his therapies. Mrs X chased School 2, but not the Council, in October. School 2 temporarily excluded P twice for one day and one week. The School told Mrs X at the beginning of November it would contact the Council about P’s support.
  2. Mrs X chased School 2 again in November. The Council provided me with telephone call records which showed Mrs X also telephoned a Council officer that day and spoke with them for 12 minutes. At the end of that week, Mrs X asked P’s Social Worker to speak to School 2 about P’s support. Mrs X contacted the Council later that month to advise it School 2 had been trying to contact the SEN team. P received three sessions from SALT in November.
  3. Mrs X says P’s lack of therapies led to him becoming overwhelmed and displaying behavioural issues. School 2 permanently excluded P at the end of November.

P’s time out of school

  1. Mrs X contacted the Council in December about P’s education and therapies. The Council told her its Access to Education staff were on Christmas leave and P’s case needed to go to panel in January.
  2. The Council referred P to Access to Education at the beginning of January 2018. Mrs X sent information to the Council about the cost of extra OT with P’s existing OT. Two and a half weeks later, Access to Education started providing P with four hours weekly tuition. Mrs X sent an email to the Council as she had heard nothing further about OT and SALT, and P’s tuition was not full-time education.
  3. At the end of January, the Council’s SEN Manager emailed Mr and Mrs X. They agreed four hours weekly was not enough for P and said the Council should increase it to three hours daily, as well as provide the therapies in line with P’s EHC plan. The Council told me due to staff members being on long-term sick leave and a lack of records, it could not explain what happened next.
  4. Mrs X told the Council again in February P was not receiving enough tuition. She says Access to Education told her it did not have enough tutors. The Council tried to contact another provider. Mrs X says the Council also told her it did not have any therapists. It told Mrs X P’s support needed to be authorised by a panel.
    Mrs X told it P’s EHC plan included SALT and OT so she did not understand why it required further authorisation.
  5. P received 18 hours of tutoring between January and March 2018. P started full-time education at a small specialist school, and started receiving the provision named in his EHC plan, at the beginning of March 2018.

Mrs X’s complaint

  1. Mrs X complained to the Council in May 2018. She explained P was already three or four years behind his peers, and the lack of alternative education and provision had a significant impact. She explained it was also distressing for her, and she had to take time off work and arrange childcare with friends and family.
  2. The Council responded to Mrs X’s complaint in June 2018. It accepted it had a non-delegable duty to deliver P’s provision. It accepted P did not receive a full-time education following his permanent exclusion from School 2, or the therapies stated in his EHC plan. It recognised the significant impact that had on P and his family and apologised. It said it could not always provide enough education for children and young people out of school, but it was working to improve this.
  3. Mrs X responded to the Council in July. Mrs X said the Council’s referral to Access to Education in January 2018 was too late. She said a lack of funding was not a reason to not provide a full-time education for over three months. Mrs X said, on the balance of probabilities, P’s lack of OT for two years and SALT for ten months led to his increased anxieties and behaviour difficulties.
  4. The Council responded in September. It said it could not speak to an officer as they were on long-term leave. However, it apologised its officer may not have responded to the school’s first contact to advise that more support was needed. The Council said the delay in its referral to Access to Education was partly because the school had not provided details of P’s exclusion or why it could not meet his needs. However, it recognised a referral in December would have eased Mrs X’s anxieties. The Council offered Mrs X £125 as well as the apologies it had already given.
  5. The Council could not provide me with records from meetings between May 2017 and March 2018. The Council also could not provide copies of communications between its officers and third parties (schools and therapy providers), due to officers no longer being in post.
  6. The Council told me it did not amend P’s EHC plan following the move to his new school and his annual review in May 2018. Mrs X says no review took place. The Council recognised the lack of any amendment was not acceptable. The Council explained it had experienced difficulties due to long-term staff sickness and staff leaving the Council. It told me it had put extra resources into its SEND team following this, and the team is now fully staffed. The Council told me it would like to send Mrs X and P a further apology.

Analysis

  1. From May 2017, the Council had a duty to ensure P received two hours of therapy weekly, as well as group-based support. The Council cannot provide records for this time period and on the balance of probabilities, it did not contact School 1 to monitor whether it had arranged P’s provision. P did not receive the therapy he was entitled to at School 1 and that was fault.
  2. P also did not then receive the therapy he was entitled to at School 2, aside from three sessions with SALT in November 2017. That was fault. Mrs X chased the school, but not the Council, about P’s therapies. The Council did not know P was not receiving his provision until School 2 and Mrs X contacted it at the beginning of November 2017. I have considered that Mrs X and the schools could have contacted the Council sooner. However, the Council had a non-delegable duty to ensure P received his provision. It is open to the Council to consider whether the steps it takes to monitor provision are sufficient.
  3. On the balance of probabilities, the lack of provision contributed significantly to P’s difficulties worsening while attending School 2, and that led to his later exclusion. The EHC plan stated the provision P needed because of his SEN. P did not receive the support he required in a timely way. I am satisfied that P was therefore caused a significant disadvantage by the Council’s failure to ensure he received therapies.
  4. When P was excluded, it took the Council five weeks to refer him to Access to Education, which is a term-time service. The Council held a meeting and has also stressed it did not receive information from School 2 that it required. Part of the five-week period was during the Christmas holidays, however the Council had enough time to refer P before Access to Education closed for Christmas. P was entitled to a full-time education from the sixth day after his permanent exclusion. The delay in referring P to Access to Education was fault.
  5. From mid-January 2018, P received four hours tutoring weekly. The Council’s SEN manager said P should receive three hours daily. There is no evidence which showed why the manager decided 15 hours weekly was in P’s best interests, given that guidance says the starting point should be a full-time education of 24 hours weekly for a child of P’s age. In any event, P did not receive that three hours daily. The law does not require education out of school to be full time in all circumstances. However, due to the lack of evidence P should receive a part-time education, he was entitled to a full-time education.
  6. P should have received a full-time education from December 2017. Instead, he received 18 hours of tutoring between January and March 2018. That was fault. He also continued to receive no SALT and OT while out of school. That was also fault.
  7. The Council has accepted fault and has apologised to Mrs X. It is not possible to put P back in the position he would have been in were it not for fault. The Council has therefore offered Mrs X £125. This financial remedy is not sufficient to recognise the injustice the Council’s faults caused to P and his family.
  8. The Council did not keep satisfactory records about its contact with the schools and therapy providers. The officers concerned have now left the Council or are on long term leave, and I have not therefore made a recommendation about record-keeping. However, the Ombudsman expects thorough, clear and contemporaneous records to be kept and it is open to the Council to consider whether its service keeps satisfactory records.
  9. The Council cannot tell me whether it made any attempts to monitor P’s provision or whether it took more steps to try and arrange tuition for him when he was out of school. The lack of records made it difficult for officers to continue the work on this case when their colleagues were on sick leave. That led to no increase in P’s tuition before he started at a new school in March 2018. That was fault.
  10. Mrs X says P became low, unsociable and flat when he was at home. Because tuition took place at the family home, Mrs X had to take time off work or arrange for friends and family to be at her home while Mrs X worked. P’s anxiety worsened, and the family experienced avoidable distress. The injustice to P was substantial, as the faults occurred at an important time of his school career, and the impact of time out of school was compounded by the lack of provision for his special educational needs.
  11. The Council told me in February 2019 it had delayed reissuing P’s EHC plan following his annual review of May 2018. If Mrs X believes that delay caused further injustice, it is open to her to make another complaint. That has not formed part of my investigation, which looked only at events up to March 2018. However, it is open to the Council to consider whether the delay caused further injustice, and whether it should provide an additional remedy. The Council told me it will contact Mrs X following my final decision to explore this in further detail.
  12. Mrs X has also indicated the Council may have repeated previous faults more recently. As above, I have not investigated this and it is open to Mrs X to make a further complaint.

Agreed action

  1. The Council has already apologised to Mrs X. It has agreed to also pay:
    • £3,000 to P to recognise ten months of missed SALT and OT, from May 2017 to March 2018.
    • £1,500 to P to recognise three months when it did not provide a suitable, alternative full-time education for him after his permanent exclusion, from November 2017 to March 2018.
    • £500 to Mrs X who experienced significant distress and had to stay at home at times due to lack of suitable education.
  2. For the avoidance of doubt, the recommended payments include the £125 the Council has already offered Mrs X and should also be outside of any provision allocated in Y’s EHCP. The Council will provide evidence to the Ombudsman that it has taken the above steps within one month of my final decision.
  3. The Council told Mrs X it was working to improve availability of education for out-of-school pupils. It has agreed to provide information to the Ombudsman of the steps it has taken so far, and an action plan for any outstanding work on this. It will provide this within three months of my final decision.

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Final decision

  1. I have found fault by the Council which caused significant injustice to P and
    Mrs X. It has already apologised and offered a financial remedy. It has agreed to the action I recommended to recognise the remaining injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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